The online publication of the membership list of the right-wing British National Party (BNP) has raised some important issues. Following its publication, a policeman revealed to be a supporter is now expected to face disciplinary action, and a national radio station confirmed that it would no longer be using a freelance presenter whose details were also leaked. Both events highlight some of the problems employers need to consider if they discover that employees are members of extremist political organisations.
Q What are the potential consequences if an employer dismisses an Employee revealed to be a member of an extremist political organisation?
A Apart from police officers, who are specifically banned from becoming BNP members, it is likely that the dismissal of an employee simply on the basis of their membership of the BNP or any extremist political organisation will be found to be unfair by an employment tribunal. In assessing the fairness of the dismissal a tribunal would take into account whether the employer had first shown that one of the potentially fair grounds for dismissal applies, and that it had acted reasonably in dismissing the employee.
As political membership could not be said to be a conduct, capability or a legality issue, and assuming the post is not redundant, the only potentially fair ground for dismissal that the employer could rely upon is that there was ‘some other substantial reason’ for the dismissal. It would very much depend on the individual circumstances as to whether this argument would succeed. However, if the individual’s membership did not have an impact on their ability to do the work it would appear unlikely.
Q How much compensation would an employee unfairly dismissed for such reasons receive?
A The maximum basic award is £9,900 and the cap on the compensatory award currently stands at £63,000. These figures are likely to rise from 1 February 2009. However, the actual sum that the employee would be awarded would depend upon their individual circumstances. The basic award is calculated in the same way as statutory redundancy and increases with age and length of service. The compensatory award would reflect the employee’s losses flowing from the dismissal, and so will depend on the employee’s salary and period of subsequent unemployment.
Q Would dismissal on the grounds of extremist political affiliation amount to race discrimination?
A It is unlikely that dismissal on these grounds would amount to race discrimination following the decision of the Court of Appeal in Redfearn v Serco t/a West Yorkshire Transport Service 2006. In this case Serco dismissed one of its drivers immediately upon discovering he was standing as a candidate for the BNP on the grounds that the firm’s predominantly Asian clients would be worried about them employing an active BNP local councillor. Redfearn did not have enough service to bring an unfair dismissal claim, but instead submitted that his dismissal was contrary to the Race Relations Act as it was ‘on racial grounds’ because it was targeting white people.
The Employment Appeal Tribunal had agreed on the basis that ‘on racial grounds’ must be construed widely to provide maximum protection. However, the case then proceeded to the Court of Appeal, which overturned the decision and found there had been no race discrimination. In the court’s judgment Redfearn was no more dismissed ‘on racial grounds’ than an employee dismissed for racially abusing his employer, a fellow employee or a valued customer.
Q What should we do if other employees harass the individual?
A All reasonable steps should be taken to protect the employee from harassment. It is an implied term of contract that the employer will provide a safe place of work, and if bullying or harassment is allowed it is likely to also amount to a breach of Health and Safety legislation. An employee faced with such conduct could resign and claim constructive dismissal or bring civil proceedings under the Protection from Harassment Act 1997.
Q Could the employee be dismissed from a union?
A In the case of Aslef v Lee the train drivers’ union expelled Lee on the grounds of his membership of the BNP, and subsequently amended its rules to prevent admission of anyone who was a member of the BNP. Lee successfully brought proceedings in an employment tribunal on the grounds that the union had unlawfully expelled him and Aslef was obliged to re-admit him, even though doing so now directly contravened its rules.
Aslef took the issue to the European Court of Human Rights on the grounds that UK legislation contravened the right of freedom of association. The European Court agreed, and the Employment Act 2008 when implemented next year will give trade unions the power to deny membership to individuals whose political beliefs are in opposition to their own.
by Guy Guinan, employment partner, Halliwells